Planning for hazardous substances

Why does land use planning need to consider hazardous substances?

The lessons from explosions such as at the Flixborough chemical works in Humberside in 1974, Seveso in Italy in 1976 and Buncefield in 2005 underline the importance of controlling sites where hazardous substances could be present and where development is proposed near them.

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How does the planning system deal with hazardous substances?

There are 3 elements to how the planning system deals with preventing and limiting the consequences of major accidents:

1. Hazardous substances consent

This is required for the presence of certain quantities of hazardous substances. This is a key part of the controls for storage and use of hazardous substances which could, in quantities at or above specified limits, present a major off-site risk.

2. Dealing with hazardous substances in plan-making

When preparing Local Plans, local planning authorities are required to have regard to the prevention of major accidents and limiting their consequences. They must also consider the long-term need for appropriate distances between hazardous establishments and population or environmentally sensitive areas. They must also consider whether additional measures for existing establishments are required so that risks to people in the area are not increased. Detailed requirements are set out in the Town and Country Planning (Local Planning) (England) Regulations 2012.

3. Handling development proposals around hazardous installations

When considering development proposals around hazardous installations the local planning authority is expected to seek technical advice on the risks presented by major accident hazards affecting people in the surrounding area and the environment. This advice is sought from the Control of Major Accident Hazards (COMAH) competent authority. This allows those making planning decisions to give due weight to those risks, when balanced against other relevant planning considerations. The competent authority also provides advice on developments around pipelines, licensed explosives sites, licensed ports, developments around nuclear installations and other relevant sites. There are also additional expectations on how local authorities notify people about applications in the vicinity of a hazardous establishment.

The Seveso III Directive sets expectations on land-use planning. In particular, Article 13 requires planning controls to apply to all establishments within the scope of the directive and developments in the vicinity of these establishments. Article 15 sets expectations on public participation in decision making. In England these requirements are implemented through a system of consents for hazardous substances under the Planning (Hazardous Substances) Act 1990 and through arrangements for dealing with planning applications and plan-making.

The purpose of hazardous substances consent

What is the purpose of hazardous substances consent?

The hazardous substances consent process ensures that necessary measures are taken to prevent major accidents and limit their consequences to people and the environment. This is a key part of the controls for storage and use of hazardous substances which could, in quantities at or above specified limits, present a major off-site risk. The system of hazardous substances consent does not replace requirements under health and safety legislation.

Hazardous substances consent provides control over the presence of hazardous substances whether or not an associated planning permission is required. Where the presence of a hazardous substance is directly associated with a proposed development, local planning authorities can exercise control through the decisions on applications for planning permission.

The consent process regulates the storage and use of hazardous substances and enables breaches of control, which may present serious risks, to be dealt with quickly and effectively.

Separate health and safety law ensures measures are in place for the safe use of hazardous substances. However, even after measures have been taken to prevent major accidents, there will remain the residual risk of an accident which cannot entirely be eliminated. Hazardous substances consent ensures that this residual risk to people in the vicinity or to the environment is taken into account before a hazardous substance is allowed to be present in a controlled quantity. The extent of this risk will depend upon where and how a hazardous substance is present; and the nature of existing and prospective uses of the application site and its surroundings.

Who decides if the risk of storing hazardous substances is tolerable?

The hazardous substances authority has responsibility for deciding whether the risk of storing hazardous substances is tolerable for the community. Therefore the decision on whether a particular proposal to store or use a hazardous substance should be allowed is one for the hazardous substances authority. Where the hazardous substances authority is itself applying for hazardous substances consent it must apply to the Secretary of State.

Who is the hazardous substances authority and what is its role?

The hazardous substances authority will usually be the local planning authority. The local council should therefore be the first point of contact to check who the hazardous substances authority is. The hazardous substances authority for an area determines hazardous substances consent applications and enforces the controls. In some circumstances the county council are the hazardous substances authority.

Who advises the hazardous substances authority on the level of risk?

The COMAH competent authority advises the hazardous substances authority on the nature and severity of the risk to persons in the vicinity and the local environment arising from the presence of a hazardous substance. The COMAH competent authority is a statutory consultee and must be consulted by the hazardous substances authority before hazardous substances consent can be granted.

Who is the Control of Major Accident Hazards (COMAH) competent authority?

The COMAH competent authority for most cases is the Health and Safety Executive and Environment Agency, acting jointly and for nuclear sites the Office of Nuclear Regulation and the Environment Agency, acting jointly. They advise hazardous substances authorities on the nature and severity of the risk to persons in the vicinity and the local environment arising from the presence of a hazardous substance at an establishment.

Where there is development associated with the storage or use of hazardous substances, a separate planning permission may also be necessary. In some cases, an environmental permit may also be required. Dealing with related applications for hazardous substances consent, an environmental permit and for planning permission together should speed up decision making and avoid unnecessary duplication in providing information.

There may be different considerations, and decisions, for related applications. It is important that related decisions are not inconsistent (eg conditions containing conflicting requirements). To avoid confusion, detailed control over the manner in which a hazardous substance is to be kept or used is best addressed by hazardous substances consent conditions.

Deciding whether a hazardous substances consent is needed

When is consent needed for the storage or use of hazardous substances?

Consent is needed if specified hazardous substances are stored or used at or above specified controlled quantities. Where more than one substance is present there are procedures for working out whether consent is required. In certain circumstances there are exemptions to these controls.

Part 3: substances used in processes that it is reasonable to foresee may generate a controlled amount of hazardous substance.

Hazardous substances consent is required for hazardous substances present at any establishment that falls within the scope of the Seveso III Directive. The concept of ‘establishment’ is important. It is defined in Article 3 of the directive and means any installation or collection of installations which are within an area of land under the control of the same person or body. In distinguishing one establishment from another it is essential to establish who exactly has control.

A consent may also be required for the presence of hazardous substances even though the amount of the substance present is below the controlled quantity specified for that substance:

Where more than one hazardous substance with the same type of hazard is present then all of those substances are added together to determine whether consent is required for them. This is calculated using an addition rule.

Consent is also required for other substances used in processes where a hazardous substance could be generated as a result of a loss of control of the process. Operators should consider all types of scenarios including during storage that are reasonable to foresee and may lead to hazardous substances being generated. It is not intended to bring into scope premises which do not manufacture, use or store hazardous substances, solely because of hazardous substances being generated in an accident. For example, a warehouse holding non-hazardous substances is not in scope of the Regulations solely because a fire might generate hazardous substances above threshold quantities.

What is the rule governing the addition of hazardous substances?

The list of hazardous substances subject to controls in Schedule 1 of the Regulations is split into Part 1 and Part 2. The addition rule is used in circumstances where more than one substance (whether a category of substance from Part 1 or named substance from Part 2) will be present on site, but individually each substance is below controlled quantities (if the substance is above the controlled quantity, a consent is already required).

The addition rule is only applied to below controlled quantities, and is applied regardless of whether there are also substances present above the controlled quantity.

For the addition rule the following calculation is used:

q1/CQ1 + q2/CQ2 + q3/CQ3 + q4/CQ4 + q5/CQ5 + …etc

The quantity present for each substance (qx) is expressed as a fraction of the controlled quantity for that substance (CQx). These are then added together. If the sum equals or exceeds 1, then consent is required for each of the substances included in the addition.

For some substances in Part 2 of the list, the controlled quantity (CQX) used for the purpose of the addition is different from that used in considering the controlled substance itself. The controlled quantities for the purpose of the addition rule are set out in note 5 of the table in Schedule 1 to the Regulations.

Before the addition rule is considered, the applicant should find out the relevant classifications for all of the below controlled quantity substances that will be subject to the addition rule (eg health hazard, environmental hazard and/or physical hazard). This needs to be in accordance with the CLP regulations.

Depending on the hazardous properties it possesses, the substance may need to be considered in more than one addition. For example, chlorine is a health, physical and environmental hazard and therefore would have to be considered when the addition rule is applied to each group.

Where the addition rule would require such a substance to be consented as part of two or more hazard groups, only a single consent is needed. It does not require one for each group.

Is consent needed for minor changes to the types and quantities of substances stored?

In some circumstances, where an existing consent is already held, hazardous substances consent is not required for a minor change to the type and quantity of substances stored.

A change in location is not a minor change.

Consent is not required where:

the hazardous substances authority receives written notice from the COMAH competent authority (copied to the person in control of the relevant land) confirming:

details of the minor change, including details about how substances are to be kept and used;

that the minor change will not result in a change to consultation zones; and

that the minor change will not result in a change to the status of the establishment under the Seveso III directive; and

that any hazardous substances that are held without hazardous substances consent in reliance on this exemption are kept and used in accordance with the details set out in the notice from the COMAH competent authority.

Is consent needed for substances stored in small amounts which do not pose a risk?

In some circumstances, small amounts of most substances can be disregarded when assessing whether hazardous substances consent is required. This is because of an exemption known as the 2% rule.

Regulations stipulate that the exemption can apply up to 2% of the controlled quantity of most substances where its presence cannot initiate a major accident elsewhere on the site. This may be, for example, because it is stored separately or because of the physical properties of the substance as stored on site. The responsibility for determining whether small quantities of hazardous substances maybe disregarded under this exemption is, initially, for the site operator.

Is hazardous substances consent needed for nuclear sites?

The hazardous substances consent procedure does not apply to substances that create a hazard from ionising radiation at licensed nuclear sites. However, other hazardous substances present at certain nuclear sites (those which do not create hazards through ionising radiation) are subject to hazardous substance consent controls. Separate arrangements apply to controlling development around nuclear sites.

Do explosives require hazardous substances consent?

If you have an explosives licence issued by the Health and Safety Executive in some cases hazardous substances consent is not needed.

The quantity of explosives licensed by local authorities is less than the quantity subject to hazardous substances consent. There should therefore be no need to apply for consent for the presence of these explosives alone. However, consent may be required if present in combination with other hazardous substances.

Aerosols containing liquefied petroleum gas (LPG) are not classified under the named substance entry of LPG (in Part 2 of the Schedule) – these would instead be classified as P3a Flammable aerosols. The Health and Safety Executive’s guidance provides more information on dangerous substances in aerosols and category of flammable aerosol.

Examples of the addition rule

Example 1

The following substances are present together at the example establishment:

Substance/category

Amount present

Controlled quantity

Fraction

Bromine

15.00 tonnes

20.00 tonnes

15/20

Chlorine

3.00 tonnes

10.00 tonnes

3/10

Ethylene oxide

2.00 tonnes

5.00 tonnes

2/5

H1 acute toxic

1.00 tonne

5.00 tonnes

1/5

H2 acute toxic

5.00 tonnes

50 tonnes

5/50

P8 oxidising liquids and solids

3.00 tonnes

50.00 tonnes

3/50

None of these substances will be present at amounts greater than its individual controlled quantity. Under the addition rule, substances that are in the same hazard group have to be considered together.

(a) Bromine, chlorine, ethylene oxide and the acute toxic substances (H1 and H2) are in the same hazard group (health hazards – Part 1, Section H) and therefore have to be added together. Expressed as fractions of their controlled quantities the sum is:

The sum of these fractions is greater than 1, so for each of the substances hazardous substances consent is required.

(b) Chlorine and ethylene oxide are in the same hazard group with the oxidising substance (physical hazards – Part 1, Section P) so have to be added together. Expressed as fractions the addition is:

3/10 + 2/5 + 3/50 = 0.30 + 0.40 + 0.06 = 0.76

Since the sum is less than 1, there is no need for a consent for the oxidising substance. Chlorine and ethylene oxide already require consent under the health hazards calculation in (a) above.

Bromine and chlorine are also hazardous to the environment however as they already require consent under the health hazard calculation and there are no other substances with environmental hazard characteristics there is no need to carry out a further calculation.

Example 2

A number of hazardous substances are present at an establishment. None of them are substances named specifically in Part 2 of the list but they are all within the categories in Part 1. The site operator does not wish to name the individual substances, preferring to apply for consent under their generic headings. The substances shown on the consent application form are as follows:

Substance/category

Amount present

Controlled quantity

Fraction

Acute toxic (H1)

4.00 tonnes

5.00 tonnes

4/5

Acute toxic (H2)

35.00 tonnes

50 tonnes

35/50

STOT specific target organ toxicity - single exposure STOT SE (H3)

10.00 tonnes

50.00 tonnes

10/50

These substances have similar hazard characteristics (health hazards – Part 1, Section H) and they therefore have to be added together for the purpose of determining whether a consent is needed. Expressed as fractions of their controlled quantities the addition is:

4/5 + 35/50 + 10/50 = 0.80 + 0.70 + 0.2 = 1.7

The sum of the addition exceeds 1, so for each of the substances a hazardous substances consent is required.

Example 3

More than one hazardous substance within the same hazard group will be present both above and below the controlled quantity.

Substance/category

Amount present

Controlled quantity

Bromine

21.00 tonnes

20.00 tonnes

Chlorine

3.00 tonnes

10.00 tonnes

H1 acute toxic

1.00 tonne

5.00 tonnes

H2 acute toxic

5.00 tonnes

50.00 tonnes

The amount of bromine is greater than its controlled quantity. It therefore requires hazardous substances consent.

All of the other substances are in the same hazard group, in this case (health hazards – Part 1, Section H). As there are two or more below-control quantity substances in the same hazard group, the addition rule applies to those substances. Expressed as fractions of their controlled quantities the addition is:

3/10 +1/5 + 5/50 = 0.30 + 0.20+ 0.10 = 0.60

The sum of the addition is less than 1 so consent for these substances is not required.

Chlorine is also within the physical and environmental hazard groups, however, as there are no other below control quantity substances in these hazard groups, there is no need to carry out any further calculations.

Exceptions from hazardous substances consent

Temporary presence of hazardous substances for a short time while in transit (loading, unloading and intermediate storage)

The temporary presence of a hazardous substance does not need to be taken into account if it is being transported from one place to another, unless it is unloaded or present on land which already has consent or requires consent for other hazardous substances. It is up to the hazardous substances authority to take a view on whether the presence of a hazardous substance is temporary.

Substances in transit, unloaded to transfer to another means of transport, are likely to be exempt if there was clear intention to transfer to another means of transport as opposed to going into storage. It is for the hazardous substances authority to determine whether a consent would be required based on the requirements of legislation.

Hazardous substances in pipelines

If a hazardous substance is being transported by a pipeline then hazardous substances consent is not required unless the pipelines are on land which already has consent or requires consent for hazardous substances. Consent is required for pipelines carrying substances from one part of the establishment to another.

Emergency unloading from ships

Where ships or other sea vessels containing hazardous substances are allowed to enter a harbour in a dangerous condition there is an exemption from needing consent. The harbourmaster may waive normal requirements for advance notice in the interests of health and safety.

In such cases substances may need to be removed and stored as a matter of urgency. There is an exemption for 14 days from unloading to give time for suitable alternative storage arrangements to be made.

Waste landfill sites

Hazardous substances at waste landfill sites are usually exempt from the consent procedure. There may be controls on substances in the waste management licence issued by the Environment Agency. In certain cases, for example, in relation to some sites used for the storage of metallic mercury, consent will be required. The exceptions are set out in paragraph 7, Schedule 2 of the Planning (Hazardous Substances) Regulations 2015.

Nuclear sites

Hazardous substances at nuclear sites that create a hazard from ionising radiation are exempt from the consent procedures if they hold a nuclear site licence or require one.

Minerals

There is an exemption for mines and quarries, but this exemption does not apply in some circumstances, for example in relation to chemical and thermal processing operations and related storage.

Explosives

If you have an explosives licence issued by the Health and Safety Executive in some cases hazardous substances consent is not needed.

Presence of substances on sites before 1 June 2015

An exemption means that hazardous substances consent is not required for quantities of substances that were present on site during the 12 months before the Planning (Hazardous Substances) Regulations 2015 came into force and which did not require consent at the time. This 12 month period is referred to as the ‘establishment period’.

However, this exemption ceases to apply if the quantity of the established substance is increased above the quantity present during the establishment period. If the exemption ceases to apply, consent requirements will apply in the normal way including, when applicable, applying the addition rule. The exemption does not benefit new substances introduced after the establishment period.

Examples of the 2% rule

Example 1

A site has a number of locations where small quantities of oxygen are stored; each holds less than 4 tonnes. The total quantity stored is greater than the controlled quantity for oxygen, which is 200 tonnes. However, all of the storage containers have suitable separation such that they are not capable of causing fire escalation which could become the initiator of a major accident elsewhere on the site. Under such circumstances the site does not require hazardous substances consent.

Example 2

A site has a small number of large bulk oxygen vessels which in aggregate can store a total of 196 tonnes. In addition there are a number of locations where small quantities of oxygen are stored, each less than 4 tonnes in size. The total quantity stored is greater than the controlled quantity for oxygen, which is 200 tonnes. However, all of the small storage containers of less than 4 tonnes have suitable separation such that they are not capable of causing fire escalation which could become the initiator of a major accident elsewhere on the site. Under such circumstances, the small containers do not need to be included in the total quantity and consequently the site does not require hazardous substances consent.

Example 3

The following substances are present at a site, each stored in a single separate container:

Substance/category

Amount present

Controlled quantity

Bromine

8.00 tonnes

20.00 tonnes

Ethyleneimine

3.00 tonnes

10.00 tonnes

H1 acute toxic

1.00 tonne

5.00 tonnes

H2 acute toxic

5.00 tonnes

50.00 tonnes

None of the substances present are at amounts greater than their individual controlled quantities, but they are all health hazards and have to be added together. Expressed as fractions of their controlled quantities the sum is:

8/20 + 3/10 + 1/5 + 5/50 = 0.40 + 0.30 + 0.20 + 0.10 = 1

The sum of these fractions adds up to 1, so for each of the substances hazardous substances consent would be required.

However, if the H1 acute toxic substance was stored in 2 separate containers one of which contained 0.9 tonne and the other 0.1 tonne: then the calculation and outcome could be different. The hazardous substance in the smaller container represents 2% of the controlled quantity for that substance. If the 0.1 tonnes of H1 acute toxic material could not initiate a major accident elsewhere on the site (for example because it is stored separately or because of the physical properties of the very toxic substance as stored on site) it may be disregarded when calculating the aggregate quantity. So the calculation would then be:

8/20 + 3/10 + 0.9/5 + 5/50 = 0.40 + 0.30 + 0.18 + 0.10 = 0.98

The sum of these fractions is less than 1, so there is no need for a consent for any of the substances.

An example of the threshold changing is for oxidisers. Previously, oxidising agents and organic peroxides were handled in the same manner and consents were often issued for a maximum tonnage to cover both (unless otherwise specified by the applicant). However, with the new regulations, oxidiser and organic peroxide entries are separated. The controlled quantities for both oxidising liquids and solids remains the same at 50 tonnes, but the organic peroxides entry is:

self-reactive substances and mixtures and organic peroxides type A and B

The controlled quantities for type C, D, E and F remains the same as the previous oxidiser category at 50 tonnes but the organic peroxides type A and B have a controlled quantity of 10 tonnes.

If you store type A or B organic peroxides you will need to contact your hazardous substance authority to discuss whether an amendment is needed to your consent.

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How is a variation to a consent made?

For changes to an existing consent, an application can be made to the hazardous substances authority to vary or revoke any conditions on a previous consent.

For example applicants may want to consolidate all consents held prior to the new Planning (Hazardous Substances) Regulations 2015 into a new consent using the thresholds of substances at Schedule 1 and agree with the hazardous substances authority that all previous consents can be revoked.

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Applying for hazardous substances consent

How are applications for consent made?

If consent is required, applicants will need to apply for consent to the hazardous substances authority. It is important that applications provide all the relevant information as decisions on incomplete applications can be delayed. An application for consent must include the information set out in regulation 5 of the Planning (Hazardous Substances) Regulations 2015.

Information prepared in connection with applications under other legislation (for example, environmental statements) may be useful for the purpose of an application for hazardous substances consent and can be submitted to the hazardous substances authority where relevant.

How can applicants help make sure decisions are not delayed?

Hazardous substances authorities are encouraged to be responsive to requests from applicants for early discussions. Early discussions with the hazardous substances authority and the COMAH competent authority can help to ensure the quality of applications and prevent delays. The Health and Safety Executive (or, in relation to nuclear establishments, the Office for Nuclear Regulation) will give pre-application advice to new operators of hazardous installations and to nationally significant infrastructure project applicants. The Environment Agency provides a pre-application advice service for applicants. If applications are incomplete, or information required by the COMAH competent authority is not provided, this can cause delays for applicants. See information needed in an application.

Who can see the information provided in an application?

The application will be used to make the decision on consent by the hazardous substances authority and for consultation. Applicants who are in doubt as to what could be disclosed may want to have a prior informal discussion with the hazardous substances authority.

Do applicants need to do to tell people around the site that they are making an application?

Applicants need to tell others around the site that they intend to make an application. This allows people living and working in the area to make their views known to the hazardous substances authority.

How do applicants tell local people about their application?

Before submitting the application for consent to the hazardous substances authority, the applicant must inform the public about the application through public notice (the application itself is not published). The information that must be made available is set out at regulation 6. Hazardous substances authorities should not consider applications for hazardous substances consent if they are not accompanied by evidence of the public notification. For more details see information needed in an application.

Do applicants need to own the site to apply for consent?

Applicants do not need to own the application site in order to make an application for consent. However, owners should be given the opportunity to comment on the application. Every application must therefore also be accompanied by a signed certificate relating to ownership. This will be one of the certificates (A-D) set out in form 2 in Schedule 3 of the Planning (Hazardous Substances) Regulations 2015.

Applicants should provide a copy of:

certificate A if they are the freeholder of all the land and there are no leaseholders with leases of 7 or more years;

certificate B if not, and they know the names and addresses of the other owners; or

certificate C or D if they cannot ascertain all, or some, of the other owners in order to serve individual notices on them.

How much does an application cost?

For applications where no one substance exceeds twice the controlled quantity, the fee is £250. For proposals involving the presence of a substance in excess of twice the controlled quantity, the fee is £400. Where an application is for the removal of conditions attached to a grant of consent or for the continuation of a consent upon partial change in ownership of the land, the fee is £200.

How can hazardous substances authorities apply for consent themselves?

Where a hazardous substances authority in England wishes to obtain a hazardous substances consent itself, it should apply to the Secretary of State for Communities and Local Government by sending the application to the Planning Casework Unit at the following address:

Can hazardous substances consent be given under Local and Neighbourhood Development Orders?

Local and Neighbourhood Development Orders allow for development to take place without the need for an express grant of planning permission. However they cannot provide an exemption from hazardous substances consent, which would need to be obtained in the normal way.

Information needed in an application

What information is needed in an application?

An application for hazardous substances consent must provide the information set out at regulation 5 of the Regulations. This includes information about the substances for which consent is required (referring to the list of substances in Schedule 1 of the Regulations) and the manner in which the substances are to be kept and used. This information will be treated as sensitive information once received by the local authority.

Applicants should:

include the name and address of the applicant;

provide relevant maps and drawings. Firstly, a site map, to a scale of at least 1:10,000, identifying the application site and showing National Grid lines and reference numbers. Secondly, a substance location plan, to a scale of at least 1:2,500, showing any area of the site where the substance(s) are to be stored. It is helpful if topographical features of the site are indicated (including drainage). Where existing and proposed works are shown on the same drawing, new works should be easily distinguishable;

the location of the land to which the application relates;

the person in control of the land to which the application relates;

each hazardous substance for which consent is sought (“relevant substance”), including the maximum quantity of each relevant substance proposed to be present;

details, including the quantity, of unconsented hazardous substances kept on or processed on the site;

main activities carried out or proposed to be carried out;

how and where each relevant substance is to be kept and used;

how each relevant substance is proposed to be transported to and from the land to which the application relates;

the vicinity of the land to which the application relates, where such details are relevant to the risks or consequences of a major accident; and

the measures taken or proposed to be taken to limit the consequences of a major accident.

This information should be provided for each hazardous substance or generic category for which consent is required.

There is no prescribed format for applications but some hazardous substances authorities may have their own preferred form. The Health and Safety Executive have application forms, which are based on the previous application for hazardous substances consent forms and have been updated to cover all the information required for the 2015 regulations.

Missing information or references to substances other than in Schedule 1 of the 2015 Regulations may result in your application being returned.

A notice of the application should be published in a local newspaper or by electronic media where it would bring the notice to the attention to the public better than a local newspaper notice would. This must be published within the 21 days before the date on which the application is made.

A copy of the notice should be published at the application site. This should be easily legible for people without needing to go onto the land. The notice should be displayed for at least 7 days of the 21 day period.

When the application is made, the applicant will need to certify that this publicity has happened by providing a copy of the notice (verifying that it has been published). A certificate (Form 1 in regulations) should confirm that the site notice was displayed as required. If the site notice was not displayed through no fault of the applicant, an explanation should be given.

The hazardous substances authority will ensure that a copy of the application is available for inspection at its offices during the 21 day period from the day after the application is provided for making representations.

information about hazardous substances consent in Wales is available on the Welsh Government website

information about hazardous substances consent in Northern Ireland is available on the Northern Ireland Executive website

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Deciding applications for hazardous substances consent

What does the hazardous substances authority do when it receives an application?

The first thing a hazardous substances authority will do is to make sure the application is in order. This will involve ensuring it meets the requirements set out in the Planning (Hazardous Substances) Regulations 2015. If the application is in order, the hazardous substances authority will acknowledge it and send a copy of the application to the COMAH competent authority. It will place details of the application on the register of consent applications, which is available to anyone who wants to see it. If it does not consider the application is in order it will tell the applicant why.

What expert advice should the hazardous substances authority seek?

Before deciding on a consent application, the hazardous substances authority should consult the COMAH competent authority and others as required by legislation. These include fire and civil defence authorities, other relevant planning authorities and public utilities. Natural England should also be consulted where it appears to the hazardous substances authority that an area of particular natural sensitivity or interest may be affected. These are likely to be European sites (Special Areas of Conservation and Special Protection Areas), Ramsar sites, Sites of Special Scientific Interest (SSSI) or priority habitats (Habitats and Species of Principal Importance included in the list published by the Secretary of State under section 41 of the Natural Environment and Rural Communities Act 2006). The hazardous substances authority must give consultees at least 28 days to comment.

What is the role of the Control of Major Accident Hazards (COMAH) competent authority?

The role of the COMAH competent authority is to advise the hazardous substances authority on the risks arising from the presence of hazardous substances. The COMAH competent authority has the expertise to assess the risks to people, and risks to the environment. However, the decision as to whether the risks from hazardous substances are acceptable in the context of existing and potential uses of neighbouring land is made by the hazardous substances authority.

What will the hazardous substances authority consider in making a decision?

Before reaching a decision, the hazardous substances authority will weigh up all the comments received, including those from the COMAH competent authority. It will take account of local needs and conditions, the local plan, and any other material considerations.

What consideration should be given to the Control of Major Accident Hazards (COMAH) competent authority’s advice?

In view of its acknowledged expertise in assessing the off-site risks presented by the use of hazardous substances, any advice from the COMAH competent authority that hazardous substances consent should be refused should not be overridden without the most careful consideration. Where a hazardous substances authority is minded to grant consent against COMAH competent authority advice, it should notify the COMAH competent authority and allow 21 days for the competent authority to give further consideration. During that period the COMAH competent authority will consider whether to request the Secretary of State for Communities and Local Government to call-in the application for determination.

What conditions can be imposed on a consent?

The hazardous substances authority can impose conditions, including how and where substances are kept and the times substances may be present, or requiring permanent removal within a certain time.

Conditions on how a substance is to be kept or used may only be imposed if the Health and Safety Executive (or in the case of nuclear sites, the Office of Nuclear Regulation) has advised that such conditions should be imposed. Where the COMAH competent authority is considering imposing a condition that restricts the location of a substance within a site, it should try to avoid imposing undue restrictions on relatively small amounts of that substance being located elsewhere in the establishment. For example, a condition may allow a hazardous substance to be stored in a moveable container in a different area of a site from where it has previously been stored provided the quantity does not exceed 10% of the controlled quantity. This avoids situations where, for example, a relatively small amount of a substance in a moveable container in a different part of the site (eg a gas canister to service a staff kitchen), or which is covered by the ‘2% rule’, would otherwise be a breach of the condition.

Who else could decide applications for consent?

The hazardous substances authority will usually decide the application. The Secretary of State also has the power to call-in an application for his own determination. This will be very much the exception, for example where an application raises issues of more than local importance. Where an application is called-in, the hazardous substances authority must inform the applicant.

Under the nationally significant infrastructure planning regime hazardous substances consent can be deemed to be granted by a development consent order. The aim in doing so is to provide a ‘one stop shop’ for consenting for nationally significant infrastructure projects. A deemed consent can also be issued in certain other circumstances by the government where consent is required for a development by a statutory undertaker or local authority which requires government authorisation.

How long will it take to decide on an application for consent?

Hazardous substances authorities should provide applicants with a decision within 8 weeks from receipt of a valid application. Alternatively, it should be given within any extended period agreed in writing between the applicant and hazardous substances authority. It is important that the application contains all of the necessary information in order to avoid delay. Early discussions between the applicant, COMAH competent authority and hazardous substances authority can help ensure this.

What can an applicant do to avoid delays in waiting for a decision on consent?

Early engagement can help to address issues which may lead to delays in waiting for a decision on consent. Delays to a decision on an application for hazardous substances consent are less likely when the presence of the establishment and its likely future new needs, if appropriate have been reflected in local plans. Good liaison with the local enterprise partnership can help identify the importance of local business to the economic health of the area. See How should businesses that need hazardous substances consent and local authorities work together?

An applicant needs to make sure that all the necessary information is included and is relevant to the 2015 Regulations.

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What if an applicant is not happy with the decision or the hazardous substances authority is taking too long to reach it?

It is important to consider the reasons for any refusal or conditions. It may be possible to overcome objections by changing the proposal in some way and submitting a new application. Discussions between the hazardous substances authority and applicant can help.

If a hazardous substances authority is taking longer than 8 weeks to make a decision it is possible to appeal.

Can applicants appeal against the decision on an application for consent?

An appeal can be made to the Secretary of State if the hazardous substances authority:

refuses to grant consent;

refuses an application for a continuation of consent upon change in ownership of part of the land;

refuses to grant any consent, agreement or approval required by a condition imposed on a consent;

refuses an application to vary or remove conditions attached to a previous grant of consent;

grants consent but imposes conditions which are unacceptable to the applicant; or

fails to reach a decision within the statutory time limit of 8 weeks, or any longer period agreed with the applicant.

Hazardous substances consent appeals may be made at any time within 6 months of the decision or, if no decision has been made, within 6 months from when a decision should have been given. This gives the applicant time to discuss matters with the hazardous substances authority to see if there is any possibility of finding a way of overcoming its objections bearing in mind that an appeal is intended to be a last resort.

After consent has been granted

Can the consent be used straight away?

The applicant can use the consent immediately unless the consent contains conditions that do not allow this. There may be other approvals required in connection with consent (eg planning permission if development is required).

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Who can implement the consent?

Unless a condition is imposed limiting use of the consent to a specified person or company the consent will normally run with the land, rather than being personal to the applicant. This means that if the land is sold in its entirety, the new owner will be able to implement the consent. Where there is a partial change in control of land with a consent (eg part of the land is sold, but not all of it) that consent is revoked unless an application to continue has been made.

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Can conditions be altered?

An application can be made to the hazardous substances authority to vary or revoke any conditions (form 2 in the regulations). In considering applications the hazardous substances authority can only consider the conditions; it cannot overturn the original decision by refusing consent outright. If the hazardous substances authority decides that the conditions should be varied or removed, it will grant a new consent. If it decides that the conditions should not be changed, the application will be refused, but the original consent will still stand. The same publicity procedures will apply as for applications for a new consent.

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Will a hazardous substances consent affect decisions on future development nearby?

What happens if the consent is not implemented or abandoned?

If the substances with consent have not been present for 5 years, the hazardous substances authority may revoke the consent without needing to pay compensation. There are also other circumstances where consent can be revoked.

Can hazardous substances authorities revoke or change a consent?

The hazardous substances authority can revoke or modify a consent. This requires confirmation by the Secretary of State, and the hazardous substances authority would be liable to pay compensation. There are specific circumstances where a consent can be revoked, set out in section 14 of the Planning (Hazardous Substances) Act 1990.

In some cases the use of the land with a consent may change. For example, there have been situations where sites with consent have since been converted into a car park. In these situations the hazardous substances authority can revoke the consent. Where a consent has not been relied on for 5 years, or the use of the land has changed materially since the consent was granted, it may be revoked without compensation being payable.

If there is a change to the person in control of part of the land the consent is automatically revoked unless an application for continuation has been made. When (under section 17 of the Act) an application to continue the consent is made, the hazardous substances authority may (under section 18 of the Act) modify a consent in any way they consider appropriate; or they may revoke it. However it should rarely be appropriate to impose more onerous conditions or revoke a consent.

Applications for revocation that are subject to confirmation by the Secretary of State should be sent to the Planning Casework Unit at the following address:

What happens if an operator gives up a consent?

If an operator wants to give up the consent or reduce the maximum quantity of hazardous substances for which it has consent it should discuss this with the hazardous substances authority. There is no procedure for giving up consent set out in legislation however alternative arrangements may be made (eg the hazardous substances authority may revoke the consent and make a separate agreement with the operator to waive compensation).

Who keeps a register of applications and consents?

What happens to consent if there is a change in control of the land?

When there is a change in control of part of the land hazardous substances consent will be revoked unless an application has been made to the hazardous substances authority for the consent to continue.

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Breaches of hazardous substances control

Who is responsible for ensuring hazardous substances consent requirements are complied with?

Enforcement of hazardous substances controls is the responsibility of the hazardous substances authority. The authority will liaise with the COMAH competent authority where contraventions give rise to health and safety or environmental concerns. The COMAH competent authority may consider whether action is also appropriate under Control of Major Accident Hazards Regulations 2015 or other relevant health, safety or environmental legislation.

What happens if somebody operates without consent?

Contravention of hazardous substances control can be a serious and immediate risk to people in the area. There are several options for a hazardous substances authority if somebody is operating without consent, or in contravention of a condition. In deciding a course of action the hazardous substances authority will:

take account of the nature of the unauthorised use;

the degree of risk arising from it; and

whether the breach is intentional.

In less serious cases the hazardous substances authority can negotiate with the operator to resolve the situation without formal action. For example, a hazardous substances authority may ask an operator to apply for consent retrospectively. Alternatively, the hazardous substances authority can serve a contravention notice, setting out what should be done to rectify the situation.

The hazardous substances authority can also ask for a court injunction to restrain a breach of control or prosecute. The fact that contravention is a criminal offence reflects the potential gravity of such a breach.

What is a contravention notice?

A contravention notice would set out the alleged contravention and the steps required to remedy that contravention. Requirements for a notice are set out in legislation. It would be served on:

the owner;

the person in control of the land; and

any other person with an interest in the land to which the notice relates.

The hazardous substances authority should also send a copy of the notice to the COMAH competent authority. The notice should be accompanied by information about the right to appeal, the grounds for which are set out in legislation.

The hazardous substances authority can withdraw a contravention notice at any time.

Dealing with hazardous substances in plan-making

What information is available to local planning authorities in making plans?

Local planning authorities should know the location of hazardous installations as they will have been informed of consultation zones by the COMAH competent authority. When taking public safety into account in planning decisions and formulating local plans they will need to take conscious account of the total number of people that will be present in these consultation zones.

For licensed explosives sites the license holder will provide the local authority with a safeguarding plan for the site. Plan preparation can be informed by taking into account the likely advice on applications within these zones. This will also enable the local planning authority to have regard to the objective of preventing major accidents and limiting their consequences.

If a neighbourhood plan is being developed in an area where a consultation zone applies, local planning authorities will want to take this into account when exercising their duty to advise and assist.

It is good practice to discuss any emerging issues with the COMAH competent authority at the earliest opportunity.

How should businesses that need hazardous substances consent and local authorities work together?

It is good planning practice for local authorities and businesses that need hazardous substances consent to work together when Local Plans are being prepared. This can help to reduce the potential for conflicting land uses and promote safety of people and protection of the environment.

The National Planning Policy Framework sets out that local planning authorities should support existing business sectors and, where possible, identify and plan for new or emerging sectors likely to locate in their area. This may include the chemicals industry, distributors and other businesses that require hazardous substances consent.

The chemicals industry is an important part of the UK economy. Local planning authorities can use the duty to cooperate to work strategically with neighbouring authorities and local enterprise partnerships to understand the needs of business in their area, including the chemicals industry.

In wholly or predominantly business areas that have been designated as such for neighbourhood planning, businesses can take the lead and the local planning authority can work with business to support their ambitions, including early consideration of the need for hazardous substances consent.

What can be done to overcome conflicts between hazardous substances consents and the demand for development?

It is good practice for local planning authorities to work proactively with businesses to consider how any conflicts between businesses requiring hazardous substances consents, and the need for development, can be overcome.

Reviews of consents to ensure they are still in use could help identify where consents may be redundant or could be given up.

If a hazardous substances consent is no longer used it may be appropriate for it to be revoked so as not to prevent development in the vicinity. Hazardous substances consent can be revoked in other situations, although this may result in compensation being payable.

Handling development proposals around hazardous installations

What expert advice should be sought in relation to development proposals at and around hazardous installations?

Local planning authorities should know the location of hazardous installations as they will have been informed of consultation zones by the Health and Safety Executive and the Office for Nuclear Regulation. For licensed explosives sites the license holder will provide the local authority with a safeguarding plan for the site. Local planning authorities are required to consult the Health and Safety Executive and other expert bodies on certain development proposals where the presence of those installations is relevant.

Such proposals include residential development and large retail, office or industrial developments located in consultation zones and development likely to result in an increase in the number of people working in or visiting the relevant area. Particular regard should be had to children, older people, disabled people or a risk to the environment. There may be particular issues to consider for hotels and similar developments where people may be unfamiliar with their surroundings, or which may result in a large number of people in one place. Within consultation zones certain permitted development rights may not apply.

Consultation with these expert bodies is also required in relation to any development proposals (whether authorised by planning permission or other procedure) involving new establishments or modifications to existing establishments covered by the Seveso III Directive. Consultation is also required for development involving transport routes, and public-use locations near existing establishments, where the development could be the source of or increase the risk or consequences of a major accident. Where such development could affect a sensitive natural area, Natural England must be consulted.

For each type of development where the Health and Safety Executive is consulted, the Executive’s advice to local planning authorities will take account of the maximum quantity of a substance permitted by a hazardous substances consent and any conditions attached to it. The Health and Safety Executive’s advice will be based on the following general principles:

The risk considered is the residual risk (that is the risk that unavoidably remains even after all legally required measures have been taken to prevent and mitigate the effects of a major accident) to people in the vicinity.

Where it is beneficial to do so the advice takes account of risk as well as hazard that is the likelihood of an accident as well as its consequences.

The advice takes account of the size and nature of the proposed development and the inherent vulnerability of the population at risk.

The advice takes account of the risk of serious injury, including that of fatality, attaching particular weight to the risk where a proposed development might result in a large number of casualties in the event of a major accident.

How should cumulative development around major accident hazards be dealt with?

Local planning authorities should ensure that their land-use or other relevant policies take account of public consultation requirements in preventing major accidents and limiting the consequences of such accidents for human health and the environment. They also need to take account of the increase in the number of dwellings (or population at risk) in the consultation zones from the time the hazardous substance consent was granted.

Local planning authorities are well placed to judge the extent of development around major hazard establishments and major accident hazard pipelines so, when considering public safety in planning decisions and the formulation of development plan policies, they should take account of the total number of people that are present in the consultation zones around these sites, and the implications of any increase as a result of a planning decision or policy. In the case of encroachment (development getting closer to the major hazard) the risks can increase as well as the number of people.

Cumulative development may not always be obvious particularly in the case of infill (buildings built to occupy space between existing buildings) and densification (replacement of single houses with multiple-occupancy properties). Such cumulative development, by whatever means, leads to a rise in population within the consultation zone and a proportionate increase in the consequence should a major accident occur. This can also add substantial costs for businesses that may be required to provide additional safety measures.

Local planning authorities can consult the Health and Safety Executive on other applications, for example where several planning applications fall below the thresholds in the regulations but would require consultation if they had been submitted as one larger application. Local authorities can consult the Environment Agency where a new development contains sustainable drainage. In line with the National Planning Policy Framework (paragraph 109), new development should not be put at unacceptable risk from pollution.

How will the Health and Safety Executive be consulted?

A web app allows developers and others to make enquiries related to any plot of land. It is an online system which also allows local planning authorities to obtain the Health and Safety Executive’s land use planning advice directly. The web app supports early and positive engagement and is part of the Health and Safety Executive’s wider service including pre-application advice. As a statutory consultee, the Health and Safety Executive will provide advice to local planning authorities within 21 days.

What consideration will the local planning authority give to the Control of Major Accident Hazards (COMAH) competent authority advice?

The COMAH competent authority’s role is an advisory one. It has no power to direct refusal of planning permission or of hazardous substances consent. Where the COMAH competent authority advises that there are health and safety or environmental grounds for refusing, or imposing conditions on an application, it will, on request, explain to the local planning authority the reasons for its advice.

The decision on whether to grant permission rests with the local planning authority. In view of its acknowledged expertise in assessing the off-site risks presented by the use of hazardous substances, any advice from the Health and Safety Executive that planning permission should be refused for development for, at or near to a hazardous installation or pipeline should not be overridden without the most careful consideration.

What happens if a local planning authority would like to give planning permission against the Control of Major Accident Hazards (COMAH) competent authority advice?

Where a local planning authority is minded to grant planning permission against the COMAH competent authority’s advice, it should give the Health and Safety Executive, Environment Agency or Office for Nuclear Regulation advance notice of that intention, and allow 21 days from that notice for the COMAH competent authority to give further consideration to the matter. This will enable the COMAH competent authority to consider whether to request the Secretary of State for Communities and Local Government to call-in the application. The Secretary of State exercises the power to call-in applications very selectively.

The Health and Safety Executive will normally consider its role to be discharged when it is satisfied that the local authority is acting in full understanding of the advice received and the consequences that could follow. It will consider recommending call-in action only in cases of exceptional concern or where important policy or safety issues are at stake.

Local planning authorities should notify the Health and Safety Executive where planning permission has been granted in the Safeguarding Zone of a Health and Safety Executive licensed explosives site.

How can conflicts between consents and development be addressed?

It is good planning practice for local planning authorities to work proactively with businesses that have hazardous substances consent where there is potential conflict between the existence of a consent and a local authority’s planning priorities. Reviews of consents to ensure they are still in use could help identify where consents may be redundant or could be given up. It is also important to plan strategically for the chemicals industry and other uses that require hazardous substances consents. Business, industry and local planning authorities working together when Local Plans are being prepared can help to reduce future problems and promote safety of people and protection of the environment.

If hazardous substances consent is no longer required will it still prevent development nearby?

Redundant hazardous substances consents can be a barrier to development. Sometimes a consent is no longer required by an operator. For example, a facility may have shut down or a site redeveloped. However, unless the hazardous substances consent is revoked then consultation zones are still likely to apply. Hazardous substances authorities should be proactive about revoking consents that are no longer required. Operators are required to inform the COMAH competent authority in advance of permanently closing or decommissioning a COMAH site. The competent authority will then notify the hazardous substances authority to allow for the revocation of the hazardous substances consent.

Policy on public safety from major accidents – including those at nuclear installations – is set out at paragraph 172 and paragraph 194 of the National Planning Policy Framework. Given their statutory role in public safety, local authority emergency planners will have a key role to play in advising local planning authorities on developments around nuclear installations. Early engagement can help to address issues which may otherwise affect development proposals at a later stage.

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How is development around licensed explosives facilities considered?

The Health and Safety Executive issue consultation zones around licensed explosive sites and licensed ports. Licences issued by the Health and Safety Executive specify that each place keeping or handling explosives shall be separated from other occupied buildings. This ‘safety distance’ varies according to the types and quantities of explosives present.

The licence does not of itself prevent construction or activities within these distances, but this may lead to further restrictions being imposed on the licensee. This could result in the operations with explosives becoming unviable. Licensees are therefore usually alert to any development which occurs or is proposed in the vicinity of their premises and which may seriously affect their operations. So that the Health and Safety Executive is also made aware of the possibility of encroachment on the safety distances; local planning authorities are required to consult the Health and Safety Executive at an early stage about proposed development in the vicinity of licensed explosives sites and licensed ports.

Could the zones for consultation change over time?

Changes may sometimes be required to consultation zones around sites that already have a consent for the presence of hazardous substances. The Health and Safety Executive/Office for Nuclear Regulation will keep the consultation zones under review and will inform the local planning authority if changes are appropriate. Similarly, the local planning authority should liaise with Health and Safety Executive/Office for Nuclear Regulation if it becomes aware of changed circumstances that might affect the consultation zone.

What other consultation and public participation needs to take place for development proposals at and around hazardous installations?

When local planning authorities and government bodies are considering whether to approve certain development proposals at and around hazardous installations they must ensure that there have been opportunities for public participation. It is important that information is presented in a way that allows for informed responses from those likely to be affected.

Applicants should ensure that the information that is provided in applications is appropriate for the purpose of public participation. Public communications online or in newspapers should only contain a brief summary of that information, no more than is required to understand the land-use implications. This means that only generic categories of chemicals should be referred to. Special arrangements will need to be put in place to enable the public to inspect particular documents in person. See guidance on sensitive information.

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